Citation: 2019 RLLR 133
Tribunal: Refugee Protection Division
Date of Decision: October 15, 2019
Panel: Avril Cardoso
Counsel for the Claimant(s): Said Assiani
RPD Number: TB8-19083
ATIP Number: A-2021-00256
ATIP Pages: 000087-000098
REASONS FOR DECISION
 The claimant alleges he is a citizen of Ghana and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration Refugee Protection Act (IRPA)1.
 I find that the claimant has established a serious possibility of persecution on a Convention ground, namely his sexual orientation as a gay man.
 The claimant’s allegations are set out in his Basis of Claim form (BOC). He alleges that he is a citizen of Ghana and fears persecution at the hands of society and the state in his home country because he is a gay man.
 The main issues in this case are 1E exclusion and credibility including failure to claim in the United States.
 In deciding this claim, I considered Guideline 92. The purpose of Chairperson’s Guideline 9 is to promote greater understanding of cases involving sexual orientation and gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially-accepted SOGIE norms. This Guideline addresses the particular challenges individuals with diverse SOGIE may face in presenting their cases before the Board and I was mindful of these issues in coming to a decision in this claim.
 I also considered all of the evidence including the oral testimony and documentary evidence entered as exhibits.
 The personal and national identity of the claimant is established on a balance of probabilities through the certified true copy of his Ghanaian passport3 and testimony.
 Section 98 of IRPA provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
 Article 1E specifies that the Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
 The Federal Court of Appeal in Zeng4 articulated the legal test that must be applied when deciding whether Article 1E applies. All relevant factors to the date of the hearing should be considered to determine whether a claimant has status substantially similar to that of its nationals in the third country. If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded. If the answer is yes, the RPD must consider and balance various factors. Such factors include but are not limited to the reason for the loss of status, whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
The claimant is not excluded based on his residence in the United States
 The claimant entered the United States (U.S.) on [XXX], 2009 on a U.S. Fiancé Visa which was issued on February 19, 2009 with an expiry date of August 3, 20095. The claimant testified that his fiancée was murdered on [XXX], 2009 prior to their intended marriage on March 20th, 2009.
 The claimant testified that he subsequently married another U.S. national, [XXX] on [XXX], 2014.
 The claimant testified that his spouse applied for a green card for him on April 25, 2015 but it was denied. He testified that his lawyer told him he would have to return to Ghana and his wife could then apply to sponsor him. He testified that he refused to return to Ghana because he feared for his life.
 The claimant testified that he was able to obtain a U.S. work permit in 2015 as well as a driver’s licence through his wife. He said the work permit expired in 2017 and the renewal was refused as he was informed he must return to Ghana.
 The claimant testified that he has been divorced from his wife in the U.S. for about five months.
 I find that the claimant does not have status substantially similar to nationals in the U.S. as of the date of hearing. The claimant’s temporary status in the U.S. based on the Fiancé Visa expired as of August 3, 20096. The claimant’s application to adjust his immigration status in the U.S. was denied in a decision dated January 22, 2016 from the U.S. Department of Homeland Security7. The claimant’s attempt to renew his work permit was refused. The U.S. biometrics report indicates that the claimant was issued an EAD Combo Card8. The country documentation for the United States indicates that an EAD (Employment Authorization Document) grants employment authorization to individuals along with an order of supervision for persons who have been ordered to be deported or removed from the U.S.9. This document also indicates that conditions may include periodic meetings with immigration officials, obtaining travel approval and providing written notice of change of address and confirms that work authorizations for persons under an order of supervision must be renewed annually. This evidence cumulatively demonstrates that the claimant did not have status in the U.S. substantially similar to that of its nationals. He was to be deported and no longer had the ability to work since his work permit renewal was denied.
 I also find that the claimant did not previously have status in the U.S. substantially similar to that of its nationals for the reasons set out above. The U.S. country documentation with regard to the ability of a U.S. citizen to sponsor a foreign spouse who is under an order of supervision or deportation is scarce10. However, this document indicates that an application for a green card may be made through an adjustment of status application and that a petition to re-open deportation proceedings may not be approved until the alien has resided outside the United States for a 2-year period beginning after the date of marriage11. The evidence demonstrates that the claimant did make an application for an adjustment of his status which was denied. His testimony that he was advised that a sponsorship application could be commenced after he returned to his home country is consistent with the U.S. country documentation.
 In conclusion, the claimant is not excluded pursuant to section 98.
 When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity.
 I find the claimant to be credible on a balance of probabilities.
The claimant’s sexual orientation in Ghana
 The claimant testified that when he was about twelve years old, he felt attracted to boys. He testified that he tried to hide these feelings on the outside but inside he felt he could not control his desires. The claimant testified that in Ghana, boys are expected to like girls.
 The claimant testified that two of his maternal uncles were gay and he witnessed one of his uncles stoned to death when he was fifteen years old. The claimant testified that people in his village believed that his mother’s family was cursed because his uncles were homosexual and he demonstrated similar tendencies. He said he was sent to a herbalist, made to wear a necklace and sent to the church pastor all in attempts to “cure” him from his feelings toward men/boys.
 In the claimant’s BOC12, he states that to avoid suspicion that he was gay, he began a relationship with [XXX] in 2001 and that the community perception of his sexual orientation improved after he had a child with [XXX] in August 2002.
 The claimant testified about a same sex relationship with [XXX], a young man he met. He testified that they met in 2002 or 2003 for sexual encounters at the home he was sharing with [XXX]. The claimant described his recollection of [XXX] and said that he was nice and he remembered [XXX] dimples when he smiled. He was also able to provide details about [XXX] siblings and described him as being patient. The claimant testified that [XXX] discovered him with [XXX] during an intimate encounter and the relationship with [XXX] ended. He testified that he left the village and went to Accra, a large city because he was afraid of being punished if his relationship with [XXX] was discovered in his home town.
 I find the claimant’s testimony regarding his bisexual relationships in Ghana to be credible. His testimony was straight-forward, spontaneous and detailed and was generally consistent in both his BOC narratives. The claimant was tearful during the hearing as he described his experiences related to his sexual orientation and his efforts to conceal his true feelings.
 The claimant submitted a BOC dated August 20, 201813. He then submitted an amended narrative dated September 19, 201914.
 When asked why the original BOC narrative did not set out all the details, he testified that at the time the first BOC was completed, his state of mind was impaired. He testified about being detained after crossing the border into Canada and said he was given 10 days to complete the BOC. The claimant testified that he believed he attempted self harm and said he could not remember clearly but recollected that he had a belt around his neck and then saw two guards standing beside him. The claimant’s counsel submitted that there were no material inconsistencies between the narratives and the amended narrative only provided more details about the claimant’s sexual orientation.
 I find the claimant’s explanation credible. I agree with counsel that the amended BOC provides more detail about the claimant’s personal history and is consistent with the first BOC. As well, I accept the claimant’s testimony that he was detained and that his state of mind and the short timeframe to complete the BOC would more likely than not affect his ability to provide all the details about his sexual orientation. Despite noting that the claimant had the assistance of counsel at that time, I find the claimant’s explanation reasonable in these circumstances.
The claimant’s delay in leaving Ghana is not determinative
 Based on the claimant’s evidence, he left his home village in [XXX] 2004 and was working in Accra until [XXX], 2009 when he obtained his U.S. Fiancé Visa and was able to leave Ghana.
 The claimant testified that he was struggling to make ends meet in Accra and worked as a [XXX]. He said he grew his hair long to try to conceal his identity because he feared being recognized by people he knew in his village and worried that his relationship with [XXX] would become known. He said being an openly gay man is illegal in Ghana.
 I find that the claimant’s explanation for the delay in leaving Ghana is reasonable. I accept his evidence that his fiancée paid for his air fare and he did not have the means to leave. As well, his actions in leaving his home village and relocating to a larger urban area are indicative of subjective fear.
Failure to claim in the United States
 The claimant testified that he left Ghana on [XXX] 2009 to marry [XXX] who he met when he was working as a [XXX] in Accra. He testified that XXXX was murdered on [XXX] 2009 a day before their wedding. The claimant testified that he did not tell [XXX] about his bisexual feelings at that time because he did not want to break her trust as she was very kind to him.
 The claimant testified he then began a relationship with [XXX] and they married on [XXX] 2014. He testified that he was alone in the United States and relied on [XXX] for support and repressed his feelings toward men as he did not want to hurt her.
 The claimant testified that in July 2018 he discovered that the two children he had with [XXX] were not his own and that she had been seeing another person. This other person threatened the claimant that if he did not leave, there would be problems since he did not have status in the U.S. According to the claimant’s BOC, he went to a gay bar and had a brief relationship with [XXX]. The claimant testified that he came to Canada because he had no legal status to remain in the U.S., suffered the loss of his fiancée and effectively the loss of two daughters who he thought were biologically his own. He testified that he feared returning to Ghana because he no longer wanted to repress his feelings toward men and gay men are not permitted to live openly in Ghana.
 I find the claimant’s testimony regarding his failure to claim in the third country (U.S.) credible. I accept the claimant’s explanation for not making a claim in the United States as reasonable in the circumstances he found himself in.
 In making this finding, I am taking into account the SOGIE guideline. As stated in the guideline, individuals with diverse SOGIE recognize and act on their SOGIE differently. Furthermore, an individual’s self-awareness and self-acceptance of their SOGIE may present as a gradual or non-linear process. As such, there is not standard set of criteria that can be relied upon to establish an individual’s identification with a particular SOGIE.
 With regard to the failure to claim asylum in the U.S. after his fiancée died in 2009 and until he married [XXX] in 2014, the claimant stated in his BOC that he felt “destroyed” and had nowhere to go and felt like he was a “nobody”. The immigration documents from the U.S. indicate that the claimant faced deportation as of January 22, 2016 when a decision was issued about his request to have his status adjusted. However, he was able to obtain a work permit which expired in 2017. Since 2017, the claimant testified he was working underground and the evidence demonstrates that his deportation was not imminent. Taking into account the claimant’s state of mind after the loss of his fiancée, the discovery that his daughters were not biologically his own and the absence of evidence that there were active deportation efforts, I find his failure to claim in the U.S. does not demonstrate a lack of subjective fear. Once the claimant was threatened in July 2018 about his immigration status by [XXX] new boyfriend, he took prompt steps to claim protection in Canada. The claimant indicated in his BOC that he did not claim asylum in the U.S. because of his traumatic experiences there with the death of his fiancée and the discovery that his daughters were not biologically his own as well as the anti-immigrant policies of the U.S. government.
Claimant’s involvement with the gay community in Canada
 The claimant testified that since coming to Canada, he wants to live openly as a gay man. He asked to be referred to as gay at the hearing. He said he was tired of hiding his feelings. The claimant testified that he has repressed his feelings for so long that he is not yet ready to commit to a relationship. The claimant testified that he met [XXX] on May 10, 2019 and they have seen each other four to five times. He testified that they have been to a 519 soccer game together and go to Albion mall food court quite often or to a nearby African restaurant. [XXX] testified at the hearing and his evidence was generally consistent with that of the claimant. There was a minor inconsistency regarding the number of times they have seen each other however I do not find this inconsistency to be material.
 The claimant also testified that he has been attending The 519 community centre and has learned about LGBT rights and discrimination. He submitted a statement of membership from 51915. He said talking with the staff about his feelings helped him and at first he was shy about expressing himself but now he is able to talk about things he previously kept inside. The claimant testified that his confidence has improved and he feels he no longer has to hate the feelings he has.
 I find, on a balance of probabilities that the claimant is a gay man based on the totality of the evidence and the SOGIE guidelines.
 The country documentation indicates that same sex acts between consenting male adults is criminalized under section 104 of the Ghana Criminal Code. Although same sex acts rarely lead to prosecution, the criminalization of this activity contributes to a climate of frequent discrimination and violence of LGBTQ people in the public and family spheres16.
 Under pressure from various groups, Ghana’s president Akuffo-Addo retracted his stance on the decriminalization of same sex sexual acts and this fomented stigmatisation of sexual and gender minorities17.
 According to a 2018 Human Rights Watch report “Ghana is a country of profound contradictions. Despite its status as a liberal democracy, with a constitution that guarantees fundamental human rights to all its citizens, a relatively responsive police force, and an independent national human rights institution, the government has consistently rejected calls by United Nations bodies, including the Human Rights Council during the Universal Periodic Review of Ghana’s human rights record, to repeal the law against “unnatural carnal knowledge.” Ghanaian society is also very religious.”18 This report also indicates that homophobic statements by officials and religious leaders contribute to a culture of homophobia and incites violence against gay people. Despite being a party to several international human rights treaties, Ghana has yet to proactively address violence and discrimination toward LGBT Ghanaians.
 Therefore, the evidence establishes an objective basis for the claimant’s fear of persecution should he live openly as a gay man in Ghana.
 In assessing the issue of state protection, there is a presumption that the state is capable of protecting its citizens except in situations where the state is in complete breakdown. A claimant who alleges that state protection is not available must persuade the Board that, on a balance of probabilities, the evidence establishes that state protection is inadequate. The onus is on the claimant to approach the state for protection in situations where state protection might reasonably be forthcoming.
 The country documentation indicates that LGBTI persons face police harassment and extortion attempts. There were reports police were reluctant to investigate claims of assault or violence against LGBTI persons, although some activists said that police attitudes were slowly changing. Gay men in prison were vulnerable to sexual and other physical abuse. While there were no reported cases of police or government violence against LGBTI persons during the year, stigma, intimidation, and the attitude of the police toward LGBTI persons were factors in preventing victims from reporting incidents of abuse19.
 Country documents further indicate that the police have tried to reach out to LGBT people and ensure their protection however, despite these efforts LGBT people are still frequently subject to various forms of violence. This can be attributed to the government’s reluctance to decriminalize unnatural carnal knowledge20. The 2017/18 Amnesty International report indicates that LGBTI people continued to face discrimination, police harassment and violence. The Speaker of Parliament said to the media that homosexuality should be completely illegal and punishable by law21.
 I find that the claimant has successfully rebutted the presumption of state protection with clear and convincing evidence.
 As stated in the SOGIE Guideline, a claimant cannot be expected to conceal his SOGIE identity as a way to avoid persecution in his home country. Given the attitudes of the police and government toward LGBT people, the claimant cannot reasonably expect adequate state protection. Therefore, adequate state protection would not be reasonably forthcoming to the claimant in Ghana.
Internal Flight Alternative (IFA)
 Given the criminalization of same sex sexual activity between males, I find, on a balance of probabilities, that there is a serious possibility of persecution throughout Ghana and therefore a viable IFA does not exist.
 Having considered all of the evidence, I find there is a serious possibility that the claimant would face persecution in Ghana. I find that the claimant is a Convention refugee and I accept his claim.
(signed) Avril Cardoso
October 15, 2019
1 Immigration and Refugee Protection Act, S. C. 2001, c. 27, as amended.
2 Guideline 9 on Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration Refugee Protection Act, effective as of May 1, 2017 (the “SOGIE Guideline” or “Guideline 9”)
3 Exhibit 1.
4 M.C.I. v. Zeng, Guanqiu F.C.A. No. A-275-09
5 Exhibit 1
6 Exhibit 5
8 Exhibit 4
9 Exhibit 7, Item 3.7
10 Exhibit 7, Item 3.7
12 Exhibit 6
13 Exhibit 2
14 Exhibit 6
15 Exhibit 6
16 Exhibit 3, Item 6.1 and Item 1.5
17 Exhibit, Item 6.1
18 Exhibit 3, Item 6.3
19 Exhibit 3, Item 2.1
21 Exhibit 3, Item 2.3